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LAW OF TORTS (LAW 222)

Fall Semester, 2011-2012

Instructor: Maryam Khan Course Timings: Mondays & Wednesdays, 4.00 – 5.50 pm Office Hours: By Prior Appointment Contact: maryamk@lums.edu.pk ; ext. 2277 Course Objectives The emphasis of this 4-unit course is on the Law of Torts as it has developed and continues to evolve in South Asia – though as the progenitor of the common law, the English jurisdiction figures prominently in areas that are characterized by a vacuum in Pakistani and Indian law. The broader objective of this course is two-fold: to survey and examine the doctrinal elements surrounding each tort and, more importantly, to critically analyze the sociological issues and developments surrounding tort liability in the Pakistani legal milieu through a comparative lens. The course is divided into two parts. The first lays down a historical and theoretical framework, leading up to a closer look at the familiar paradigm of “underdevelopment” of the Law of Tort in South Asia. This prologue helps to frame the critical dimension of the course which runs through the second part on substantive law. Teaching Methodology & Grading The course content is demanding and rigorous, and primarily case-based as far as substantive law is concerned. The objective is to accustom students to engage with primary legal sources and to apply their critical insights to the socio-legal context of Pakistan. To this end, classes will be structured to allow as much interactive dialogue as possible. Students are thus expected to come to class prepared. Unprepared students will be asked to leave at the beginning of the class, and will be marked absent for that session. Attendance will be strictly enforced: (a) any student who is more than 10 minutes late to class will be marked absent and may, at the instructor’s discretion, be barred from sitting in that class; and (b) more than 3 absences will lead to a grade reduction unless the absence has been approved by the instructor in her discretion prior to the class in question. Absences for extracurricular activities will not be excused under any circumstances. The final grade for the course will comprise of the aggregate of the following: Class Participation 20 % Midterm 25 % Quiz 15 % (unannounced) Final Exam 40 % Further guidelines for the above will be provided in class in due course.

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COURSE SYLLABUS

PART I Theory, History & Sociology of Tort Law 1. Introduction No readings. 2. Colonial Backdrop

Anglo-Indian Developments: Courtenay Ilbert, “Application of European Law to Natives of India,” Journal of the Society of Comparative Legislation, Vol. 1 (1896-1897), pp. 212-226. JSTOR.

To Codify or Not to Codify?:

(i) Sir Frederick Pollock, “The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law,” to which is added the Draft of a Civil Wrongs Bill, Prepared for the Government of India, (4th ed.), 1886, pp. 536-539, 561-566. Available at http://files.libertyfund.org/files/2123/Pollock_1428_Bk.pdf

(ii) Sir Henry Maine, Minutes. Excerpts. 3. Nature & Functions of Tort

Theories of Tort Law: Jules Coleman, “Theories of Tort Law,” Stanford Encyclopedia of Philosophy, 2003 (available at http://plato.stanford.edu/entries/tort-theories/

Islam and “Crim-Torts”?:

Mohammad Ma’sum Billah, “Quantum of Damages in Takaful (Islamic Insurance): A Reappraisal of the Possibility of Adopting the Doctrines of Al-Diyah and Al-Daman,” Arab Law Quarterly, Vol. 14, No. 4 (1999), pp. 339-347. JSTOR

4. Torts, Legal Evolution & Social Change

(i) Sir Henry S. Maine, Ancient Law, Chapter X: The Early History of Delict

and Crime, 1861 (available at http://www.efm.bris.ac.uk/het/maine/chap10). (ii) Michael Clarke, “Durkheim’s Sociology of Law,” British Journal of Law &

Society, Vol. 3, No. 2 (Winter 1976), pp. 246-255. JSTOR

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5. Contemporary Systems in Comparison

The Progenitor and Its Progeny: P. S. Atiyah, “Tort Law and the Alternatives: Some Anglo-American Comparisons,” Duke Law Journal, Vol. 1987, No. 6 (Dec. 1987), 1002-1006, 1016-1044. JSTOR

Tort Law in the South Asian Context

(i) B. M. Gandhi, Law of Tort, 1987. Excerpts from Introduction. (ii) Abraham and Abraham, “The Bhopal Case and the Development of

Environmental Law in India,” International and Comparative Law Quarterly, Vol. 40, No.2 (Apr. 1991), pp. 350-355. JSTOR

Jehangir Services v. Rukhsana Begum, PLD 1995 Karachi 329 (an example of

“crim-torts”).

6. The Post-Colonial Paradigm of “Underdevelopment”

Ananyo Basu, “Torts in India: Dharmic Resignation, Colonial Subjugation, or “Underdevelopment”? South Atlantic Quarterly, Vol. 100, No. 4, Fall 2001, pp. 1053-1070 (available at http://muse.jhu.edu/journals/south_atlantic_quarterly/v100/100.4basu.pdf).

Marc Galanter, “India’s Tort Deficit: Sketch for a Historical Portrait,” in Fault Lines: Tort Law as Cultural Practice (David M. Engel & Michael McCann, eds.), Stanford, 2010, pp. 47-65.

Timothy J. O’Neill, “Through A Glass Darkly: Western Tort Law From a South and East Asian Perspective,” 11 Rutgers Race and L. Rev. 1, 2009, pp. 1-30. LEXIS-NEXIS

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PART II Law of Torts: A Comparative Approach 7. Negligence – Duty of Care The law of negligence is the backbone of the Law of Torts, since it extends over the whole sphere of human activity and is not confined, as most other torts are, to particular types of conduct or activity. It concerns the way in which activities are carried out, and not any particular activity, and it protects a variety of interests. The tort of negligence consists of 3 essential elements: (a) duty to take reasonable care, (b) breach of that duty, and (c) damage resulting or caused by that breach of duty.

The Neighbor Principle:

(i) Donoghue v. Stevenson, [1932] AC 562. (ii) Karim Buksh v. KESC, 1997 CLC 507.

Omission to Act:

(i) Hill v. Chief Constable of West Yorkshire, [1989] 1 AC 53. (ii) Jane Doe v. Toronto Commissioners of Police, 1998 O.J. No. 2681

8. Negligence – Special Cases

Pure Economic Loss:

(i) Spartan Steel v. Martin, [1972] 3 All ER 557. (ii) Murphy v. Brentwood, [1990] 2 All ER 908.

Nervous Shock:

(i) Alcock v. Chief Const. of South Yorkshire Police, [1991] 4 All ER 907. (ii) Page v. Smith, [1996] 1 AC 155. (iii)Muhd. Ishaque v. Metropolitan Corp., PLD 1996 SC 737. (iv) PIA v. Ali Raza Rizvi, 1996 CLC 627.

9. Professional Negligence

Negligent Statements:

(i) Hedley Byrne v. Heller, [1963] 2 All ER 575. (ii) Caparo v. Dickman, [1990] 2 AC 605.

Lawyers’ Negligence:

(i) Veerappa v. Evelyn Sequeira, AIR 1988 SC 506. (ii) Arthur Hall v. Simons, [2000] 3 All ER 673.

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10. Breach of Duty

Reasonable Man Standard:

(i) Blyth v. Birmingham Waterworks, (1856) 11 Ex. 781. (ii) Glasgow Corporation v. Muir, [1943] AC 448.

Res ipsa Loquitor:

(i) Hayat Services v. Kandan, 1989 CLC 2153. Degree of Care:

(i) Wagon Mound No. 2, [1967] 1 AC 617. (ii) Nettleship v. Weston, [1971] 2 QB 691.

Professionals:

(i) Roe v. Ministry of Health, [1954] 2 QB 66. (ii) Bolam v. Friern Hospital, [1957] 2 All ER 118. (iii)Alia Tareen v. Amanullah Khan, PLD 2005 SC 99.

11. Causation

Causation in Fact – the “But For” Test:

(i) Barnett v. Chelsea, [1969] 1 QB 428. (ii) McGhee v. National Coal Board, [1972] 3 All ER 1008. (iii)Jobling v. Associated Dairies, [1982] AC 794. (iv) Wilsher v. Essex, [1988] 1 All ER 871.

Causation in law – Foreseeability of Damage:

(i) The Wagon Mound No. 1, [1961] 1 All ER 404. (ii) Hughes v. Lord Advocate, [1963] 1 All ER 705.

Causation in Law – Intervening Acts and Events:

(i) McKew v. Holland, [1969] 3 All ER 1621. 12. Negligence – General Defences

Contributory Negligence:

(i) Froom v. Butcher, [1975] 3 All ER 520. (ii) Harrison v. British Railways, [1981] 3 All ER 679.

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Voluntary Assumption of Risk:

(i) Smith v. Baker, [1891] AC 325. (ii) Condon v. Basi, [1985] 2 All ER 453.

Public Policy:

(i) Pitts v. Hunt, [1991] 1 QB 24.

Necessity:

(i) Rigby v. Chief Constable of Northamptonshire, [1985] 2 All ER 985.

13. Occupiers’ Liability

Occupiers’ Liability Act, 1957 (UK), extracts.

Who is an occupier?

(i) Wheat v. Lacon, [1966] 1 All ER 582.

Reasonable Care:

(i) Haseldine v. Daw, [1941] 2 KB 343. (ii) Ali Ehsan v. Federation of Pakistan, PLD 1959 (W.P.) Lahore 458.

Reasonable safety:

(i) Phipps v. Rochester, [1955] 1 QB 450.

Non-visitors and Trespassers:

(i) Javed Iqbal v. Province of West Pakistan, 1992 CLC 2369. (ii) Revill v. Newbery, [1996] 1 All ER 291.

14. Employers’ Liability

(i) Wilsons & Clyde v. English, [1938] AC 57. (ii) Paris v. Stepney, [1951] AC 367. (iii)General Cleaning v. Christmas, [1953] AC 180. (iv) Hatton v. Sutherland, [2002] 2 All ER 1.

Employers’ Liability Act, 1938:

(i) PIA v. Ursulina D’Lima, PLD 1966 (W.P.) Karachi 580.

Workmen’s Compensation Act, 1923: ss. 1-4, 22-A: (i) Nathey Khan v. Govt. of Pakistan, 1980 SCMR 485.

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15. Vicarious Liability & Joint Liability

Vicarious Liability:

(i) Mersey Docks v. Coggins, [1947] AC 1. (iii)Ready Mixed Concrete v. Minister of Pensions, [1968] 2 QB 497. (iv) Smith v. Stages, [1989] 1 AC 928. (v) Mukhtiar Begum v. Karachi Transport Corp., 1992 MLD 1711.

Joint Liability and Contribution between Tortfeasors:

(i) Khushro Gandhi v. Guzder, AIR 1970 SC 1468. 16. MIDTERM EXAM 17. Damages for Personal Injury (1)

(i) Lim v. Camden, [1980] AC 174. (ii) Pickett v. British Rail, [1980] AC 136. (iii)Smith v. Manchester, 17 KIR 1.

18. Damages for Personal Injury (2)

(iv) Nazar Ali Siddiqui v. Pakistan, 1986 CLC 1370. (v) Naseem Rashid Mirza v. Municipal Committee, 1998 MLD 167. (vi) Rahat Ali v. Dr. Saeeda Rehman, 2002 CLC 96.

19. Damages for Death

Death as Creating Liability:

(i) Fatal Accidents Act, 1855: ss. 1-4. (ii) Kerala State Road Transport v. Susamma, AIR 1994 SC 1631. (iii)Manmatha v. Muhammad Rehman, PLD 1969 SC 565. (iv) Subhan Bano v. Sultan Khan, 1988 CLC 830. (v) Punjab Road v. Zahida Afzal, 2006 SCMR 207. (vi) Feroza Wajid v. Govt. of Sindh, 2006 MLD 786.

Death as Extinguishing Liability:

(i) Legal representatives’ Suits Act, 1855: ss. 1-2. (ii) Succession Act, 1925: ss. 305-306. (iii)Mercantile Co-operative Bank v. Habib, PLD 1967 Karachi 755.

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20. Trespass to the Person: Assault & Battery The protection of the person from deliberately and intentionally inflicted physical harm and restriction on freedom of movement, and the protection of interests in tangible property, especially the right to non-interference with land and goods, were historically the most important concerns of the Law of Torts. The relevant torts include trespass in its various forms, including trespass to the person, trespass to land, and interference with goods.

(i) Letang v. Cooper, [1965] 1 QB 232. (ii) Collins v. Wilcock, [1984] 3 All ER 374. (iii)Wilson v. Pringle, [1986] 2 All ER 440. (iv) International Environmental Law Research Centre, “Tort Law in India,”

Annual Survey of Indian Law 2001 (2002), pp. 1-4. 21. Trespass to the Person: False Imprisonment

(i) Murray v. Ministry of Defence, [1988] 2 All ER 521. (ii) Govt. of Pakistan v. Sardar Muhd. Ali, PLD 1965 Karachi 1. (iii)Mazharuddin v. The State, 1998 P Cr. LJ 1035. (iv) Riaz Ahmed v. I.G. of Police, 2006 MLD 1093. (v) International Environmental Law Research Centre, “Tort Law in India,”

Annual Survey of Indian Law 2001 (2002), pp. 4-8.

22. Trespass to Land & Interference with Moveable Property

Possession of Land:

(i) Street v. Mountford, 1985 1 AC 809. What constitutes land?

(i) Bernstein v. Skyviews, 1978 QB 479. (ii) Anchor Brewhouse v. Berkley House, 1987 284 E.G. 625.

Distinguish Civil from Criminal Trespass:

(i) Pakistan Penal Code, 1860: ss. 441-444, 447-448. (ii) Illegal Dispossession Act, 2005.

Interference with Moveable Property:

(i) Provincial Govt. NWFP v. Afzal Khan, PLD 1959 (W.P.) Peshawar 34.

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23. Private Nuisance Certain torts exist in relation to the protection of personal and proprietary interests against conduct which is not necessarily, or cannot be proved to be, either intentional or negligent. These include torts of ancient origin such as nuisance (private and public) and the strict liability rule in Rylands v. Fletcher, which highlight the importance vested in the landowner’s interest in enjoyment of property. Actions strict liability for injuries and property damage caused by defective goods, have emerged in response to the need for improving standards of public health and personal safety.

Proprietary Interest in Land:

(i) Hunter v. Canary Wharf, [1997] AC 655.

(i) Unlawful Interference:

(i) Robinson v. Kilvert, 41 Ch D 88. (ii) Hollywood Silver Fox Farm v. Emmett, [1936] 2 KB 468. (iii)Halsey v. Esso Petroleum, [1961] 2 All ER 145. (iv) Miller v. Jackson, [1977] QB 966.

24. Public Nuisance and Strict Liability

Public Nuisance:

(i) Code of Civil Procedure, 1908: s. 91. (ii) Pakistan Penal Code, 1860: s. 268. (iii)Naz Shaukat v. Yasmin Minhas, 1992 CLC 2540. (v) Islamuddin v. Ghulam Muhammad, PLD 2004 SC 633. (vi) Khurshida Shorish v. Province of Punjab, PLD 2004 Lahore 744.

Strict Liability & Foundations of Environmental Law:

(i) Rylands v. Fletcher, [1861-73] All ER Rep 1. (ii) Cambridge Water v. Eastern Counties, [1994] 1 All ER 53.

(iii) Farzana Parveen v. KESC, 2005 MLD 1556.

25. Product Liability and Consumer Protection

Salman Humayun, “Consumers Versus Corporate Sector: Judicature’s Role in Balancing the Equation,” undated manuscript, pp. 1-17 (available at http://www.supremecourt.gov.pk/web/subsites/scp50/Articles/18/1.pdf).

Consumer Rights Commission of Pakistan, “Model Consumer Protection Act

2000,” 2000, extracts (available at http://www.crcp.org.pk/PDF%20Files/mcp_act_2000.PDF).

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Punjab Consumer Protection Act, 2005 (available at http://punjablaws.gov.pk/laws/477.html).

Consumer Rights Commission of Pakistan, “General Elections 2008: Policy

Commitments of Political Parties, Consumer Protection” (available at http://www.crcp.org.pk/PDF%20Files/Elections_CPL_Dec27.07.pdf).

Journalistic sources:

(i) Rana Tanveer, “Consumer Court Gaining Popularity,” Daily Times, Monday,

April 13, 2009. (ii) Jamaluddin Jamali, “Consumer Courts in Dilemma over Consumer

Definition,” The Nation, November 25, 2009. (iii)See generally Special Report on Consumer Protection, The News, at

http://www.jang.com.pk/thenews/sep2007-weekly/nos-02-09-2007/spr.htm.

Shamshad Hussain Syed v. District Consumer Court, Lahore, PLD 2010 Lahore 214.

Chief Executive, FESCO v. Nayab Hussain, PLD 2010 Lahore 95.

26. Defamation (1) The Law of Tort has long protected individuals’ interest in their reputation. The law of defamation, like many other branches of torts, provides for balancing of interests. The interest which a person has in her reputation has to be balanced with the interest which every person has in freedom of speech. The tort of defamation protects reputation, and the defences to this tort protect the freedom of speech. Similarly, the torts of malicious prosecution and frivolous litigation, apart from discouraging the perversion of the machinery of justice and abuse of the judicial process, also have a role to play in the protection of reputation.

Defamation Ordinance, 2002. Defamatory Statements:

(i) Sim v. Stretch, [1936] 2 All ER 1237. (ii) Charleston v. News Group Newspapers, [1995] 2 All ER 313. (iii)Botham v. Khan, July 1996.

Reference to Claimant:

(i) Morgan v. Odhams Press, [1971] 2 All ER 1156. (ii) Hasan Razaqi v. Mehrun Visa Mehr, PLD 1971 Karachi 266.

Defamation & Freedom of Speech:

(i) New York Times v. Sullivan, 376 U.S. 254 (1964). (ii) Majid Nizami v. Muhammad Rashid, PLD 1996 Lahore 410.

Distinguish from Defamation as a Criminal Offense:

(i) Pakistan Penal Code, 1860: ss. 499-500.

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27. Defamation (2) Readings to be assigned. 28. Malicious Tort Actions

Malicious Prosecution:

(i) Martin v. Watson, [1996] 1 AC 74.

Lack of Reasonable and Probable Cause, and Malice:

(i) Glinski v. McIver, [1962] AC 726. (ii) Abdur Rashid v. State Bank of Pakistan, PLD 1970 Karachi 344. (iii)Abdul Rauf v. Abdul Razzak, PLD 1994 SC 476. (iv) Niaz v. Abdul Sattar, PLD 2006 SC 432.

Malicious Civil Proceedings (or “frivolous litigation”):

(i) Zahra Zaidi v. Anwar Ghauri, 2004 CLC 223.

Malicious Arrest/Process:

(i) Muhammad Mantazuddin v. Shamsur Rahman, PLD 1964 Dacca 618.